Justice Alito’s Dissent in Loving v. Virginia

Posted in Articles, Gay & Lesbian, Law, Media Archive, United States on 2014-12-11 00:40Z by Steven

Justice Alito’s Dissent in Loving v. Virginia

Boston College Law Review
Volume 55, Issue 5 (November 2014)
pages 1563-1611

Christopher R. Leslie, Chancellor’s Professor of Law
University of California, Irvine

In 1967, in Loving v. Virginia, the U.S. Supreme Court unanimously struck down miscegenation statutes, which criminalized interracial marriage, as unconstitutional. In 2013, the Court in United States v. Windsor invalidated Section 3 of the so-called Defense of Marriage Act (“DOMA”), which precluded federal agencies from recognizing marriages between same-sex couples even if the marriages were legally valid in the couples’ home state. While Loving was a unanimous decision, the Court in Windsor was closely divided. Almost half a century after Chief Justice Warren issued his unanimous Loving opinion, the Loving dissent has been written. Justice Alito authored it in Windsor. Justice Alito fashioned his dissent as upholding DOMA. But the rationales he employed were much more suited to the facts of Loving than the facts of Windsor. In this Article, Professor Leslie explains how each of Justice Alito’s reasons for upholding DOMA applies equally or more strongly to miscegenation laws at the time of the Loving opinion than to DOMA in 2013. There is simply no internally consistent way to defend DOMA with Justice Alito’s arguments without also upholding the constitutionality of miscegenation laws. Thus, Justice Alito not only authored a dissent for the Windsor case; he effectively wrote a dissent in Loving nearly 50 years after the case was decided. His reasoning would require the upholding of Virginia’s miscegenation statute. To the extent that the legal community now recognizes that the former anti-miscegenation regimes represent a shameful chapter of American history, the fact that the same arguments used to defend miscegenation laws are being invoked to justify bans on same-sex marriage suggests that such bans are inherently suspect and probably unconstitutional.

Read the entire article here.

Tags: , , , , ,

Race, Sex, and the Freedom to Marry: Loving v. Virginia

Posted in Books, History, Law, Media Archive, Monographs, United States, Virginia on 2014-11-09 17:36Z by Steven

Race, Sex, and the Freedom to Marry: Loving v. Virginia

University Press of Kansas
November 2014
296 pages
5-1/2 x 8-1/2
Cloth ISBN 978-0-7006-1999-3, $39.95(s)
Paper ISBN 978-0-7006-2000-5, $19.95(s)
Ebook ISBN 978-0-7006-2048-7

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In 1958 Mildred Jeter and Richard Loving, two young lovers from Caroline County, Virginia, got married. Soon they were hauled out of their bedroom in the middle of the night and taken to jail. Their crime? Loving was white, Jeter was not, and in Virginia—as in twenty-three other states then—interracial marriage was illegal. Their experience reflected that of countless couples across America since colonial times. And in challenging the laws against their marriage, the Lovings closed the book on that very long chapter in the nation’s history. Race, Sex, and the Freedom to Marry tells the story of this couple and the case that forever changed the law of race and marriage in America.

The story of the Lovings and the case they took to the Supreme Court involved a community, an extended family, and in particular five main characters—the couple, two young attorneys, and a crusty local judge who twice presided over their case—as well as such key dimensions of political and cultural life as race, gender, religion, law, identity, and family. In Race, Sex, and the Freedom to Marry, Peter Wallenstein brings these characters and their legal travails to life, and situates them within the wider context—even at the center—of American history. Along the way, he untangles the arbitrary distinctions that long sorted out Americans by racial identity—distinctions that changed over time, varied across space, and could extend the reach of criminal law into the most remote community. In light of the related legal arguments and historical development, moreover, Wallenstein compares interracial and same-sex marriage.

A fair amount is known about the saga of the Lovings and the historic court decision that permitted them to be married and remain free. And some of what is known, Wallenstein tells us, is actually true. A detailed, in-depth account of the case, as compelling for its legal and historical insights as for its human drama, this book at long last clarifies the events and the personalities that reconfigured race, marriage, and law in America.

Tags: , , , ,

Loving v. Virginia in Historical Context

Posted in Articles, History, Law, United States on 2014-07-29 00:34Z by Steven

Loving v. Virginia in Historical Context

Crossing Borders, Bridging Generatons
Brooklyn Historical Society
June 2014

Renee Romano, Associate Professor of History
Oberlin College

Renee Romano teaches history at Oberlin College and she is the author of Race Mixing: Black-White Marriage in Postwar America (Harvard University Press, 2003), and co-editor of The Civil Rights Movement in American Memory (University of Georgia Press, 2006). Her new book, Racial Reckoning: Prosecuting America’s Civil Rights Murders (forthcoming from Harvard University Press in fall 2014) explores the contemporary prosecutions of civil rights era crimes.

On June 12, 1967, the U.S. Supreme Court delivered a groundbreaking decision in the aptly named case, Loving v. Virginia. Responding to a challenge to a Virginia law that barred interracial marriages, the Supreme Court ruled that state laws that made it illegal for whites and nonwhites to marry were unconstitutional.

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection clause,” Chief Justice Earl Warren wrote in the unanimous decision.

With the stroke of a pen, the Supreme Court overturned centuries of common practice and its own legal precedent.

The colony of Virginia had enacted the first law punishing interracial marriage in 1691 in an attempt to prevent what it called the “abominable mixture and spurious issue” produced by unions between whites and nonwhites. Miscegenation laws proved vital for establishing racial boundaries and for constructing a racial hierarchy that placed whites above people of color. All but nine of the fifty states outlawed interracial marriage at some time in their history. These laws were not limited to the South—they existed at different historical moments in states ranging from Massachusetts to California, and they variously outlawed marriages between whites and those defined as black, Asian and American Indian. What they had in common was a shared intent in protecting the status of whites and communicating the subordinate position of nonwhite groups…

Read the entire article here.

Tags: , , ,

Opinion: Supreme Court ruling upholds America’s mixed view

Posted in Articles, Census/Demographics, History, Law, Media Archive, United States on 2014-04-25 07:16Z by Steven

Opinion: Supreme Court ruling upholds America’s mixed view

Cable News Network (CNN)
2014-04-24

Martha S. Jones, Arthur F Thurnau Professor, Associate Professor of History and Afroamerican and African Studies
University of Michigan

(CNN) — I didn’t expect to find the specter of the mixed-race person making an appearance in Tuesday’s Supreme Court decision that upheld Michigan’s ban on affirmative action.

But there it was.

In Schuette v. Coalition to Defend Affirmative Action, Justice Anthony Kennedy, writing for the plurality, cast doubt upon the court’s capacity to deliberate over race cases — and mixed-raced people were said to be the culprits.

Kennedy wrote that “not all individuals of the same race think alike.” Fair enough. But then he went on to suggest that mixed-race people confound the court’s capacity to “define individuals according to race.”

He continued (PDF), “In a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own.”

When we blur the lines, as mixed-race people like me are said to do, are we really undermining the court’s capacity to determine questions about the equal protection of the laws?

Kennedy’s view feels familiar: There is nothing new about regarding mixed-race people as a problem in the United States.

We can trace this idea to the earliest lawmaking in British colonial America. The first laws to regulate race were those that prohibited sex and marriage across the color line…

Read the entire opinion piece here.

Tags: , , , , ,

Regulating White Desire

Posted in Articles, Law, Media Archive, United States, Virginia on 2014-04-08 21:55Z by Steven

Regulating White Desire

Wisconsin Law Review
Volume 2007, Number 2 (2007)
pages 463-488

Reginald Oh, Professor of Law
Cleveland Marshall College of Law
Cleveland State University

  • Introduction
  • II. Loving v. Virginia
  • III. The Greatest Threat to the Purity of the White Race: Social Equality Through Interracial Marriage
  • IV. Miscegenation and Segregation Laws and the Legal Enforcement of White Racial Endogamy
    • A. The Enforcement of White Endogamy Norms During and After Slavery
    • B. White Racial Endogamy and the Segregation of Public Schools
    • C. The Regulation of White Women’s Desires
  • V. Back to Loving
  • VI. Conclusion

I. INTRODUCTION

In the landmark decision Loving v. Virginia, the United States Supreme Court held that laws prohibiting interracial marriages violated the Fourteenth Amendment’s Equal Protection Clause because they served the impermissible purpose of maintaining white supremacy. The Commonwealth of Virginia had argued that, because the law equally punished whites and blacks, it did not illegitimately single out African Americans for discriminatory treatment. In striking down the statute, the Court rejected the notion that the equal application of miscegenation laws made them consistent with equal protection.

The Court, however, never adequately addressed an apparent flaw in its reasoning. According to conventional understandings of how white supremacy operates, laws promoting white supremacy are supposed to invidiously discriminate against blacks while benefiting whites. But how can miscegenation laws promote white supremacy and the interests of whites if the laws actually restrict their fundamental right of association and punish them if they cross racial boundaries? Was the Court contending that miscegenation laws promoted white supremacy in spite of their incidental effects on the individual rights of whites?

This Article will argue that miscegenation laws functioned to promote the supremacy of the white race by, paradoxically, deliberately regulating and restricting the liberty of white individuals. Segregationists feared that some whites, particularly women and children, wanted to relate to blacks as social equals. Without legal restrictions on the associational rights of whites, segregationists feared that blacks would gain social equality and freely enter into equal intimate relations—and ultimately marriages—with them. This would result in more interracial families, and inevitably end in the creation of a nation of a “mongrel breed of citizens.”

This Article contends that segregationist justifications for miscegenation and segregation laws shows that those laws effectively imposed a legal duty on whites to adhere to cultural norms of endogamy.  Dominant social groups enforce rules of endogamy—the cultural practice of encouraging people to marry within their own social group—to protect the dominant status of their individual members and of the social group in general. Thus, laws prohibiting interracial marriages regulated white desire in order to protect the dominant status of whites as a group. The Loving Court, therefore, ultimately was correct in declaring that miscegenation laws denied blacks equal protection.

Part II of this Article discusses miscegenation laws and the Loving decision. It contends that the Court understood that miscegenation laws operated to protect white supremacy, but that it failed to adequately explain how such laws did so. Part III argues that the primary rationale used to justify these laws was the protection of the purity of the white race. Part IV will explain these laws’ history and demonstrate that segregationists enacted and supported them to ensure that whites practiced endogamy. Part V concludes by reexamining the Loving decision in light of this Article’s analysis…

Read the entire article here.

Tags: , ,

Overturning Anti-Miscegenation Laws: News Media Coverage of the Lovings’ Legal Case Against the State of Virginia

Posted in Articles, Communications/Media Studies, Law, Media Archive, United States on 2014-01-10 22:02Z by Steven

Overturning Anti-Miscegenation Laws: News Media Coverage of the Lovings’ Legal Case Against the State of Virginia

Journal of Black Studies
Volume 43, Number 4 (May 2012)
pages 427-443
DOI: 10.1177/0021934711428070

Jennifer Hoewe
College of Communications
Pennsylvania State University, University Park

Geri Alumit Zeldes, Associate Professor
School of Journalism
Michigan State University

This study fills a gap in scholarship by exploring historical news coverage of interracial relationships. It examines coverage by The New York Times, Washington Post and Times-Herald, and Chicago Tribune of the progression of the landmark civil rights case of Loving v. Virginia, in which the Supreme Court overturned Virginia’s anti-miscegenation law, which prohibited marriage between any White and non-White person. An analysis of the frames and sources used in these publications’ news stories about the case indicate all three publications’ coverage favored the Lovings.

Read or purchase the article here.

Tags: , , , , ,

Loving v. Virginia as a Civil Rights Decision

Posted in Law, Live Events, Media Archive, United States on 2013-12-09 02:21Z by Steven

Loving v. Virginia as a Civil Rights Decision

Cosponsored by the Center for African American Studies and the Program in Law and Public Affairs
102 Jones Hall
Princeton University
Princeton, New Jersey
Monday, 2013-12-09, 12:00-13:20 EST (Local Time)

Dorothy E. Roberts, George A. Weiss University Professor of Law and Sociology; Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights
University of Pennsylvania

The Workshop in American Studies brings together students and faculty from the wide range of departments that contribute to the Program in American Studies. By encouraging a diversity of topics from researchers from a variety of departments, we hope the Workshop highlights the advantages of the “in-between” disciplinary space that American Studies inhabits at Princeton. Our goal is to provide a forum where presenters can receive feedback from a wide variety of disciplinary perspectives and participants can be exposed to new methodologies and new topics for research. Moreover, we hope to foster a community of advanced undergraduates, graduate students and faculty who share in the common project of researching the American experience.

The format of the workshop is that the speaker introduces the paper for ten minutes and then we open up the floor to questions. Copies of the papers are made available outside the American Studies office, 42 McCosh Hall…

For more information and reservations, click here.

Tags: , , ,

Loving v. Virginia (No. 395): 206 Va. 924, 147 S.E.2d 78, reversed.

Posted in Articles, Law, Media Archive, United States, Virginia on 2013-10-28 02:09Z by Steven

Loving v. Virginia (No. 395): 206 Va. 924, 147 S.E.2d 78, reversed.

Waren, C.J., Opinion of the Court, SUPREME COURT OF THE UNITED STATES
388 U.S. 1, Loving v. Virginia
Appeal from the Supreme Court of Appeals of Virginia
No. 395
Argued: April 10, 1967
Decided: June 12, 1967
Source: Legal Information Institute, Cornell University Law School

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. [n1] For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [p3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court…

…Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

These convictions must be reversed.

It is so ordered.

Read the entire opinion here.

Tags: , , ,

What Interracial and Gay Couples Know About ‘Passing’

Posted in Articles, Gay & Lesbian, Law, Media Archive, Passing, United States on 2013-08-02 02:43Z by Steven

What Interracial and Gay Couples Know About ‘Passing’

The Atlantic
2013-07-31

Angela Onwuachi-Willig, Charles M. and Marion J. Kierscht Professor of Law
University of Iowa

As I awaited news of the U.S. Supreme Court’s decisions in the same-sex marriage cases last month, I began to reflect on all of the daily privileges that I receive as a result of being heterosexual—freedoms and privileges that my husband and I might not have enjoyed even fifty years ago. For our marriage is interracial.

Given my own relationship, I often contest anti-gay marriage arguments by noting the striking similarities between arguments that were once also widely made against interracial marriage. “They’re unnatural.” “It’s about tradition.” And my personal favorite, “what about the children?” In response, opponents of same-sex marriage, particularly other blacks, have often told me that the struggles of gays and lesbians are nothing at all like those African Americans (and other minorities) have faced, specifically because gays and lesbians can “pass” as straight and blacks cannot “pass” as white—as if that somehow renders the denial of marital rights in one case excusable and another inexcusable. In both cases, denying the right to marriage still works to mark those precluded from the institution as “other,” as the supposed inferior.

But what does it mean to “pass”? And what effect does passing have, in the longer term, on a relationship and on a person’s psyche?

Until a recent trip with my husband to South Africa, my understanding of the harms caused by passing came primarily through my research on interracial family law, and in particular through the tragic love story of Alice Beatrice Rhinelander and Leonard Kip Rhinelander, to which I devoted the first half of my recent book

Read the entire article here.

Tags: , , , , , ,

Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68

Posted in Articles, Biography, Law, Media Archive, United States, Virginia on 2013-06-20 21:37Z by Steven

Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68

The New York Times
2008-05-06

Douglas Martin

Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws, died on May 2 at her home in Central Point, Va. She was 68.

Peggy Fortune, her daughter, said the cause was pneumonia.

The Supreme Court ruling, in 1967, struck down the last group of segregation laws to remain on the books — those requiring separation of the races in marriage. The ruling was unanimous, its opinion written by Chief Justice Earl Warren, who in 1954 wrote the court’s opinion in Brown v. Board of Education, declaring segregated public schools unconstitutional.

In Loving v. Virginia, Warren wrote that miscegenation laws violated the Constitution’s equal protection clause. “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race,” he said.

By their own widely reported accounts, Mrs. Loving and her husband, Richard, were in bed in their modest house in Central Point in the early morning of July 11, 1958, five weeks after their wedding, when the county sheriff and two deputies, acting on an anonymous tip, burst into their bedroom and shined flashlights in their eyes. A threatening voice demanded, “Who is this woman you’re sleeping with?”

Mrs. Loving answered, “I’m his wife.”

Mr. Loving pointed to the couple’s marriage certificate hung on the bedroom wall. The sheriff responded, “That’s no good here.”

The certificate was from Washington, D.C., and under Virginia law, a marriage between people of different races performed outside Virginia was as invalid as one done in Virginia. At the time, it was one of 24 states that barred marriages between races…

…Mildred Delores Jeter’s family had lived in Caroline County, Va., for generations, as had the family of Richard Perry Loving. The area was known for friendly relations between races, even though marriages were forbidden. Many people were visibly of mixed race, with Ebony magazine reporting in 1967 that black “youngsters easily passed for white in neighboring towns.”

Mildred’s mother was part Rappahannock Indian, and her father was part Cherokee. She preferred to think of herself as Indian rather than black.

Mildred and Richard began spending time together when he was a rugged-looking 17 and she was a skinny 11-year-old known as Bean. He attended an all-white high school for a year, and she reached 11th grade at an all-black school.

When Mildred became pregnant at 18, they decided to do what was elsewhere deemed the right thing and get married. They both said their initial motive was not to challenge Virginia law.

“We have thought about other people,” Mr. Loving said in an interview with Life magazine in 1966, “but we are not doing it just because somebody had to do it and we wanted to be the ones. We are doing it for us.”…

Read the entire obituary here.

Tags: , , , , ,